Costing E-Discovery
Projecting and Controlling the Costs of Discovery
The following presentation reflects only the views of the presenters and does not represent the position of any government agency or Georgetown University. All specific data included
is presented in sample format and is for illustrative purposes only.
Costs: Limiting, Sharing, Shifting
Anticipate
Litigation
Litigation Hold
Litigation Filed
Discovery Requests
Fluid Initiation
Cost Limitation/Cost Sharing
Court Ordered
• Limiting Scope of Discovery
• Custodians, date range, file type, accessibility, etc.
• Cost sharing/shifting (e.g. cost of vendor, hosting platform, etc)
• Practical and Legal Limits on cost sharing/shifting
• ADA – prohibition on “gifts”
• Ability to monetize the costs
• Ability to sell your proposal to the opposing party
Cost Shifting/Court Ordered
26(F) Conference
Rule 16
Conference
Cost Limitation/Cost Sharing
Court Ordered Cost Shifting
• Court Ordered Limits or Cost Shifting
• Common Law “Tests” Applied
• FRCP 26(c), 26(b)(2)(B),26(b)(2)(C)
• But consider:
• Cost of motion practice
• Timing – court will work from status quo
Motion to Compel or
Protective Order
Court Ordered
26(F) Conference
Rule 16
Conference
Cost Limitation/Cost Sharing
Court Ordered Cost Shifting
• Costs that courts will often agree to shift to requesting party
• Restoration of inaccessible data
• Search (type and scope)
• Costs that many courts will not shift to requesting party:
• Preservation
• Processing/production
• Review for privilege/confidentiality
• Forensic examination of computers.
Motion to Compel or
Protective Order
Cost Recovery
Productions;
30(b)(6), Etc.
Trial
Post Trial
Cost Limitation/Cost Sharing
Court Ordered Cost
Shifting
• Post-trial Recovery Limited
• FRCP 54(d) – only “prevailing party” can recover enumerated costs
• 28 USC 1920(4) – often limited to costs of “exemplification”
• 28 USC 1920(3) – printing and witnesses
Cost Recovery
Legal Cost Control Summary
Anticipate
Litigation
Litigation
Hold
Litigation
Filed
Discovery
Requests
26(F)
Conference
Rule 16
Conference
Motion to Compel or
Protective Order
Productions;
30(b)(6), Etc.
Trial
Post
Trial
Potential Cost Control/Recovery
• Your greatest ability to control costs is at the beginning of the case.
• There are real costs to seeking court intervention.
• The willingness and ability of the court to limit/shift costs decreases the further along the parties
are in the discovery process.
• “What is good for the goose is usually good for the gander.”
• Post-trial ability to recover discovery costs is very limited
Finding the Costs of E-Discovery
Changing the direction of e-discovery costs
Increased clarity through
defined processes and
understood costs
Reduced project costs
through technology, case
strategy, and cooperation
Finding the Costs of E-Discovery

Three strategies, one goal: Develop the tools to define costs, reduce costs, and
facilitate cost-shifting to reduce an Agency’s financial e-discovery burden

Define costs:




Define the workflow
Define the process
Define the intended result
Assign value to each step
Design the Workflow
Define the workflow
Define the process
Define the intended result
Assign value to each step
Design the Process: Theory into Practice
Define the Intended Result

Individualized to the project and the mission

E-Discovery

FOIA

Investigations

May develop or change over time

Posture may be offensive or defensive

Objective: Shared vision with legal, IT, and other stakeholders
Assign Value to Each Step
Disclaimer: The rates and numbers are hypothetical and used purely for illustrative purposes.
Workgroup Deliverable (Cost)

Fully-automated and adjustable spreadsheet

Uses market costs of common EDD tasks

Predicts cost based on size and complexity of the matter

Defensible in court or with other parties in negotiating the costs and scope of discovery

Useful to predict costs as a first step toward their shifting or reduction
Disclaimer: The rates and numbers are hypothetical and used purely for illustrative purposes.
Process in Action

USDA developing in-house resources to execute e-discovery projects

Objective: Create cost savings with efficiency and predictability

Challenge: Balancing single investment vs. on-going costs

Solution: Mix methods of the market and the Department

Mega 4 contract vs. Enterprise-level investments and vendor relationships

Labor costs in house

Managing the costs for long-term vs. short-term matters
The One TB, One Million Record Case
•
Assumes Agency Used Internal Resources For Identification, Preservation & Collection
•
Processing
•
Imaging
•
Hosting
•
Near Duplicates & E-Mail Threading
•
Analytics Indexing
•
Review
•
10% For Project Mgmt, Productions, Security Clearances, Supplies, Rework, &
Unknowns
One TB, One Million Record Case
Product/Service
Unit
Rate
Volume
Cost
Processing
GB
96.97
1024
$99,297.28
Create Images
Page
0.032
3,500,000
$112,000.00
Near-Duplicate & E-mail Threading
Document
0.06
1,000,000
$60,000.00
Analytics
GB
191.43
1024
$196,024.32
Hosting
GB Month
20.45
12288
$251,289.60
Review (Contract Law Clerk)
Hour
59.46
20000
$1,189,200.00
Subtotal
$1,907,811.20
Project Management and Other Direct Costs (10%)
$190,781.12
Total
Disclaimer: The rates and numbers are hypothetical and used purely for illustrative purposes.
$2,098,592.32
Where to Begin?
My Agency Doesn’t Have The:
•
Funding To Respond To Discovery
•
Human Capital To Respond To Discovery
•
Expertise To Respond To Discovery
•
Technology To Respond To Discovery
•
People Who Are Responsible For Responding To Discovery
•
Lines Of Authority Between Counsel and IT For Responding To Discovery
•
Commitment To And Recognition That Responding To Discovery Is Mission Critical
So How Do We Manage?
What Can Counsel And IT Do To Control Costs
•
Advocating For Information Management Policies
•
Strategies For Limiting Scope
•
Advocating For In-House Resources
•
Effective Oversight Of Contract Vendors
•
Effective Application Of Available Technologies
Information Management
•
Have Established Information Management Policies For Employees
•
•
•
Manage Unique User Generated Information
•
•
Employ E-Mail Archiving and Document Management Systems
Life Cycle Management Solutions



Should Not Reside On The Desktop (PC), Home Systems Or Mobile Devices
Discovery by Design
•

Project Folders For Both E-Mail and Loose Files
Project Based vs. User Based
Auto-Tagging Of Records
Single Instance Storage
Analytics On Data In Place?
Information Management (continued)
Sound Information Management Enables Collection of Source Data That Is:
•
Clear In Composition And Right Sized
•
Thoughtfully Organized
•
Differentiated
•
Centrally Administered
Enabling Narrow, Appropriately Focused Data Collection Will Provide More Savings Than Any Downstream
Legal or Technical Strategies Combined.
Data Custodians
Establish Effective and Timely Process
•
Key Custodians
•
Every Custodian Represents A Cost
•
Basis for Inclusion/Exclusion From COR List
•
Every Person That Can Reasonably Be Removed From List Represents Immediate Savings
•
Consider Use of Custodian Tiers To Allow Appropriate Scope and Process On Per Tier Level
Processing & Hosting
The Arguments for Bringing Processing and Hosting “In House”
•
Hardware and Software Investment Usually Pays For Itself From The First Large Project
•
ENRD Provided Over $10 Million In E-Discovery Products And Services For Less Than $1 Million In
Labor
•
Ensures All Projects Receive The Same Repeatable And Defensible Treatment
•
Multi-use Investment
•
Discovery, FOIA And Other Information Requests
Utilizing Contract Vendors
If Your Agency Does Not Regularly Face Large Discovery Consider Using a Vendor (Don’t Try To Do It
Yourself)
•
Hold Competitions
•
Negotiate Hard
•
Time & Material Vs. Product
•
Image Only What’s To Be Privilege or Produced
•
Be Aware of Average Pricing
•
GSA, MEGA Contract good sources.
Review Strategies
Have A Solid Methodology For Training Review Staff And Stay Involved Daily
•
Helps When Need To Ramp Up Review Staff
•
Avoids Constant Back And Forth Questions
•
Ensures Consistency
•
Measure Review Progress
•
The more documents reviewed in an hour will have an enormous impact on cost
Takeaways
•
Get Control Of And Understand Your Agency’s Information
•
Use All Available Strategies To Limit The Scope/Volume Of Data In Every Case
•
Use In-House Processes or Effectively Manage Contract Vendors Through
Competitions, Negotiation, Knowledge and Oversight
•
Take Advantage Of Text Analytics Technologies To Make Your Reviewers As Efficient As
Possible